There are worlds contained in this grain of sand. Klaxon, of course, is the case where the Supreme Court decided that a federal court sitting in diversity case should apply the choice of law rules of the state in which it sits in order to determine what state's law it should apply. A technical issue to be sure, but one that in itself represents the triumph of a particular view of law -- positivism -- as well as a particular view of federalism and the breadth of certain constitutional provisions, such as the Full Faith and Credit Clause. Footnote 20 itself is interesting for what it says about the development of American legal thought. First, it is striking that it collects the law review articles that "noted" the case.

These were brief pieces written by students, not even rising to the level of formal Notes, which are in effect mini-law review articles. (For example, here is a copy of my own law review note.) Today, case comments are the intellectual bottom feeders of the law review food chain. First, they are written by students. Second, they are written about doctrine. Third, they focus on a single case. At the top of the food chain -- of course -- are articles written by professors, which focus on theory, and draw extensively -- perhaps exclusively -- from non-legal sources. The gap between the top and the bottom of the law review pecking order reflects the broader and much lamented gap between the profession of law and the profession of legal scholarship. The fact that a treatise would stoop to the citation of case comments is evidence of this gap.

Yet the citation of comments also invokes a world of practice that no longer exists. The case comment was originally envisioned as a tool for the practicing lawyer. It would keep him updated on developments in the law, and provide a practically useful synthesis of cases. Yet this assumed a world in which the development of case law was of primary importance, and in which that case law developed at a rate that made it possible to identify leading cases. Neither of these conditions still hold. Today lawyers practice in a world where case law is frequently of secondary importance to legislation, regulations, and even opinion letters by regulatory enforcers. All of these things are produced in a volume that makes the notion of keeping abreast of developments in the law via general purpose law reviews laughable. Today, things like BNA reporters have replaced law reviews for those few attorneys who can escape from the particularities of practice to keep informed about "general" developments in their field.

Footnote 20's invocation of a lost legal world also says something about life of legal literature. Wright and Miller is a staple of my life. In litigation practice, I consult it more often than any other treatise. Footnote 20 points out its odd layering. Passages in some sections clearly trace back to the first edition of the treatise, while others are as recent as the newest pocket part. In this sense, Wright and Miller is like the ship of the Argonauts, rebuilt one plank at a time while on a long voyage. In this sense it is like the law itself, which is no doubt a large part of what marks it off as a masterful treatise. The law always involves the recovery of lost worlds, but never for their own sake. Rather, lawyers grab at the bits of the past that continue to intrude upon the present to govern disputes of today.

Over the weekend I had a very interesting conversation with a former commercial banker who once upon a time wrote a major loan for a pay-day loan company. Generally speaking, the pay-day loan industry is seen as the absolute bottom-feeders of the consumer credit market. These are the guys that write short term loans -- generally two weeks -- at 15% interest. In the eyes of many, this looks like legalized loan sharking, extracting huge interest payments from the weak and the desperate. My banker informant, however, told me a different story.

First, he said that the default rate on pay-day loans is quite low -- around 8%. What this means is that for the vast majority of borrowers, the interest is not compounding. Furthermore, the pay-day loan companies don't want it to compound and aggressively weed out customers who try to roll the short-term loans over from week to week. The reason for this is obvious. Even though the math of 15% interest compounded bi-weekly might look appealing on paper, in practice the debtors are likely to be judgment-proof, collection costs are high, and rolling the loan over suggests that the chances of ultimate repayment are low. In other words, contrary to the imagination of many a left-leaning consumer bankruptcy professor, pay-day loan companies are not out to pile up massive interest payments on tiny principle amounts.

The second thing that I learned was that a big part of success in the pay-day loan market comes from customer service. The folks who use pay-day loans are generally treated like crap at the bank. This is hardly surprising. After all, these are the sorts of people who bounce checks and are unlikely to qualify for a nice Fannie-Mae standard mortgage that can be immediately sold in the secondary market. On the other hand, pay-day loan centers treat their customers very nicely, although they also make sure that they get follow-up calls reminding them of repayment due dates. What this means, however, is that pay-day loans are quite labor-intensive given the amount of money involved.

The last thing I learned was the relationship between pay-day loans and checking accounts. Most pay-day loan companies require that their customers have a checking account. More interestingly, however, many people go to pay-day loans because of their checking accounts. Many of these loans are written to insure that checks written on a depleted account don't bounce if they clear before pay day. The reason that people go to the pay-day loan companies is that at many banks the penalty and service fees that one pays on a bounced check are in excess of what the pay-day loan company charges. In other words, folks turn to the pay-day loan companies to get protection from more "respectable" lenders.

Of course, to really verify these stories I would want some real data. Still, I am inclined to trust my banker informant, and at the very least the story sounds plausible. Voluntary contracts have a way of working to the advantage of both parties...

I recently found myself doing some research at work on the treatment of IP licensing agreements in bankruptcy. For a variety of reasons having mainly to do with historical accidents going back the bad old days of Swift v. Tyson it can matter a great deal in bankruptcy whether or not an IP agreement is treated as a contract or a license. Reading through the cases on the issue, I found myself increasingly frustrated. This distinction, I thought to myself, is really artificial. The whole way of doing this inquiry assumes that there is some essential attribute of contractness or licenseness that lawyers can identify. Contracts and licenses, however, aren't abstract essences. They are human creations that serve our own human purposes. Rather than asking what a particular agreement is we ought simply to ask ourselves what we want to do.

Stepping back from my internal dialog, I was once again struck by the extent to which I find the ghost of Oliver Wendell Holmes, Jr. in my thinking. My frustration, of course, is thoroughly Holmesian, and I no doubt have it because during the first year of law school I had Holmes beaten into my skull, although -- insidiously enough -- his name and thought was never really explicitly placed on the table. Everything was done in the vague guise of teaching me to "think like a lawyer." Ha! I was not taught to think like a lawyer. I was taught to think like a somewhat bitter and cynical Boston Brahman judge who picked up a hatred of abstraction from his dinner buddies in Cambridge. Consider this from the "The Path of the Law":

Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it?

In a letter to a friend, Holmes once remarked that the true glory of a scholar is the hope of a "postponed power" that comes from the fact that generations hence men who have forgotten him will nevertheless continue to think to the cadence of his thoughts. I find it irksome how often I find myself unconsciously dancing to Holmes's cadence.

The first and overarching error of neoconservatives, Mr. Sullivan, is their willingness (nay, eagerness) to use war to achieve their ideological objectives. Neoconservatives see war as a tool, perhaps messy and unpleasant, not to mention expensive, but sometimes useful.

War is the greatest horror we inflict upon one another, destroying bodies and lives, inflicting untold pain, often on innocent bystanders. War must be a last resort, undertaken with great reluctance, when no other option is available--appropriate only when necessary to defend ourselves against an immediate aggressor (as international law recognizes).

Broadly speaking, it seems to me that there are two arguments that could support Tamanaha's position. The first is some sort of Kantian duty never to do harm to others (except in particular circumstances like immediate self-defense) regardless of the consequences, which could include things like leaving a brutal and murderous regime in power. Notice, this argument is not based on any calculus of costs and benefits or means and ends.

The second argument would be that war never actually solves problems, but will only beget more violence and death. This is the more pragmatic intuition behind Sting's lines, "There's no such thing as a winnable war/It's the lie we don't believe any more." I actually think that this is the more interesting argument.

The neocons clearly did not subscribe to Sting's position. In so doing, it seems to me that they were inheritors of a peculiarly American strategic heritage. The fact of the matter is that through out its history America has been able to solve strategic problems through war. Indeed, America's wars -- with some notable exceptions like Korea, Vietnam, and the Gulf War -- have always resulted in a transformed world where the old threats and problems simply no longer existed. Contrast this to the European experience, where wars routinely left precisely the same strategic situation in place that called them into being. The most dramatic example of this was World War I, which began with a resentful and ultimately expansionist Germany surrounded by anxious powers, and ended with a resentful and ultimately expansionist Germany surrounded by anxious powers. However, lesser examples abound, e.g. the Peace of Utrecht, the Peace of Augsburg, the Peace of Paris, etc. all of which left the same balance-of-power system in place that had led to war to begin with.

Ironically, World War II is the war that fixed the American and European views of war. In European eyes it is the holocaust that showed that war just doesn't work. In American eyes it is the evidence that American strength has the ability to solve even the most intractable of strategic problems, namely the centuries of bloody balance of power war making in Europe.

I think that both the American and European view of war are wrong. Tamanaha is surely right that war is a horrible catastrophe. On the other hand, I am not convinced that it is the worse catastrophe that could befall someone, and I don't think that the universe of things worse than war is exhausted by immediate threats to one's own safety. Yet the neocons have clearly been seduced by America's history of military successes, viewing the inconclusive wars of the second half of the 20th century as aberrations from the norm. The fact is that war is always a dangerous and terribly costly tool. Sometimes it will work, and sometimes it will not, and one needs more than good intentions to decide which case is which.

OrinKerr has an interesting post summarizing an article on the rise of conservative politics at Harvard Law School, and the contributions of the Federalist Society. Kerr writes:

I went to Harvard during Bob Clark’s deanship, and I think it’s fair to say that (at least to the students) he didn’t seem to be a forceful agent of change. However, in a particularly intriguing passage, Hicks determines that Clark reshaped the admissions criteria somewhat so that ended preferences for those who “had taken time off, engaged in public works, or participated in other significant outside activities or experiences.” According to Duncan Kennedy, those policies had “contributed to the liberal-radical strength” during James Vorenberg’s tenure as Dean. The absence of those policies, and increased focus on LSAT scores and GPAs, apparently led to more conservative students being admitted. (See pages 701-02) If the admissions policies really did change that much, I think this is a notable explanation. Still, I would want to know more before making a conclusion one way or the other.

I also went to HLS under Dean Clark. (Kagan became dean the year that I graduated.) I do think that there are two other things that Clark did. First, he seems to have stopped the hiring momentum of the CLS movement. By the time that I arrived, they were no longer radicals poised to storm the gates. Rather, they seemed like rather sad and bitter failed revolutionaries who were ghettoized in HLS's somewhat-less-than-stellar jurisprudence area while the law and economics jocks hired by Clark grabbed the lime light.

My second bit of Clark information is more specific. Under Dean Clark, HLS made the decision not to discount the grades of Brigham Young University. The argument was that many intelligent students go to BYU for religious reasons, and hence the student body is more competitive than one would otherwise think given the university's overall profile. Prior to this move, any BYU GPA was discounted because getting a 4.0 at lowly BYU wasn't nearly as impressive as getting a 4.0 at chronically grade inflated Harvard. Or so the argument went. If -- as I suspect is the case -- the decision not to discount BYU GPA's extended to other religious universities, then one would expect a larger crop of religiously conservative students. Of course, under the old rules Mormons from BYU might still have benefited due the two years of missionary service that many Mormons perform, although, I would not be surprised if missionary work was not counted under the Vorenberg formula.

Of course all of this is nothing more than idle speculation. I fully agree with Orin that without more actual data it is really hard to say what does or does not matter.

On Friday I found myself eating lunch with a very interesting law professor. We were talking about this that and the other, and the conversation came around to two friends of mine from law school that I knew that the professor knew. I mentioned that these two friends were among the smartest people that I have ever known, which happens to be entirely correct. The professor gave me an indulgent look and said, "That is no doubt a function of your age. I can only hope that in ten years the smartest people you know won't be folks that you met around Gannett House." No doubt a worthy hope, but it is never comfortable to have the obvious truth that you are a greenie vividly pointed out over lunch...

My friend and frequent foil Russell Arben Fox is throwing in the towel. After years of struggling manfully (if I may be permitted so patriarchal a term in this enlightened age) in the cruel netherworld of adjuct academia he is walking away from the academy. It makes me very sad. First and foremost, it makes me sad because I know that it saddens Russell immensely. His is a soul cut out for the life of the mind: intelligent, curious, intensely introspective, iconoclasitic without the idiot-French-college-student-protester persona that label can sometimes invoke, and gentlemanly. He is the sort of person that you enjoy sitting down for an evening of conversation and erudition with. Furthermore, as a Mormon communitarian he has made a wonderful antagonist for my meandering Mormon liberalism. With his exit from academia comes his exit from blogging. I'll miss him greatly.

His exit calls forth two observations from me. The first is the cruelty and abitrariness of the academic meat market. Another friend of mine recently made the very wise observation that academia is basically designed for the gentleman scholar of independent means or the monk. So true! The crap shoot of the academic market -- particularlly in the humanities -- drives out those like Russell who have obligations to family and a hankering after place that keeps them from happily bouncing from one adjuct position to another for a decade or so before landing a tenure-track home. It also saddens me because I know of people who have found such homes, yet lack Russell's wit, intelligence, or commitment to the life of the mind. There are many things that are deeply wrong with our universities, and their inability to find Russell Arben Fox a place is one of them.

The second observation is the connections of blogging. I try to resist the blogs-as-community meme. It is a short journey from community, to pointless navel gazing, to vacuous gossip. I prefer to think of blogging as a very informal kind of publishing, or perhaps a slightly more formal version of conversation. Still, I consider Russell my good friend, even though our meetings and conversations outside of the context of blogging or email have been fairly limited. On the other hand, over the last several years we have sparred weekly -- sometimes daily -- and cooperated on shared enterprises. We'll stay in touch, but he will no longer be the fixture in my online conversations that he has become. I'll be a poorer person because of it.

David Zaring at Concurring Opinions has decided that the progressive baby-bust is nothing to worry about because the cause of truth and enlightenment will be saved by the teeming immigrant population of Los Angles. Out gunned by their more fecund right-wing opponents, Zaring seems to think that liberals can import allies from abroad. I am skeptical.

In a sense Zaring's argument concedes the demographic critique of progressivism by pointing to another segment of the population that has a high growth rate, both from birth and immigration. I think that it would be a mistake for Zaring and other lefties to take too much comfort from this fact. Truth be known, the Asian and Hispanic immigrants who come to America's shores are likely to be more rather than less patriarchal in Phillip Longman's terms that are the baby-producing conservatives in Salt Lake City or Kansas who so frighten the embattled coastal enclaves of progressivism.

Of course, the GOP has a horrible record of xenophobic, anti-immigrant rhetorica and anti-immigrant policy. However, there is a strong, pro-immigrant strand of religious, right-wing politics. (George Bush -- despite some of his lapses -- and Sam Brownback are good examples.) Liberals hope that immigrants can be wooed to the Democrats by playing up economic interests and by aculturating the children of immigrants to more tolerant/permissive, progressive standards. There are two problems here. The first is that the high-income, childless, professional, urban progressives are not really all that interested in economic populism. Notice the muted message on that front from the Democrats since, say, 1988. Second, it is precisely the resistance to the process of weaning children away from their parents' values that is likely to turn immigrants against those elements of American culture that progressives want them to embrace.

I agree that the jury is still out on the transformative powers of conservative demography. Kids do abandon the political and social values of their parents. Still the political and social values of one's parents happens to be one of the very best predicters of ones own political and social values, and for progressives to take any ultimate hope in conservatism losing a demographic advantage they must assume -- improbably -- that a majority of the children of conservative parents abandon conservatism. Is there any basis for this belief other than wishful thinking? Furthermore, I agree that immigration will continue to transform American society, which will look much more Asian and Latino during the course of this century. I just don't think that progressives should put too much faith in the huddled masses yearning to breath free as their saviors.

I've wanted to say something for a while on the Snarkernacle, but for whatever reason have felt like doing it at Times & Seasons would be a bad idea. Given that I am a frequent target of their love and affection, it is probably best to stay silent, but what can I say, akrasia rears its ugly head. While some of what gets posted over there is funny, the basic thrust of the project leaves a bad taste in my mouth. Furthermore, it suffers from the problem of multiple authors. Some of the posters are fairly light hearted, and manage to be nasty without necessarily being mean. Others, however, clearly seem to be sad and bitter souls. A while back, the snarking powers that be offered this explanation of their project:

SnarkerNacle is here to poke some harmless fun at people who really are big enough to take it. Hey, you go out there into the public, wanting some attention, and you get it. Don't like it, then why in the world are you blogging? In no way is it the intention of the SnarkerNacle to hurt people's feelings, to degrade, or to belittle. The Snarker just wants to have some harmless fun. What? You think you are being unfairly treated? OK, then conact the Snarker privately, and we can work something out. In the past people have been snarked, and have felt unfairly treated, contacted us privately, and we have dealt with the matter expeditiously to the agreement of all involved parties.

OK, now, gentle readers, please go back about your business. You can speculate who the Snarker is all you like, but the truth is, you have all been wrong all along, and there isn't anything that will change that short of us unmasking ourselves. Which there is no point in doing. You see, if the anonymous snarkers were unmasked, then this whole thing would be a pointed personal attack. And that isn't the intent here. The intent is for it to be a pointless, impersonal snark from a harmless source, and just have some fun. Hey, if you cannot laugh at yourself, you have no right to laugh at anyone else.

Fair enough, but some of this strikes me as a bit disingenuous. It seems pretty clear that at least some of the writers are interested in degrading and belittling. I am also at a loss as to why it is that anonymously attacking someone is not personal. I do think that there is something more than a little toxic about the enterprise. There is no actual content, and little in the way of real wit. Just the spectacle of nastiness.

Habermas exalted the way in which anonymous pamphleteers in the 18th century created what he called "the public space," a realm where the identity of the author was irrelevant because reason was to be the only arbiter of disputes. In his view, this was a monumentally important development, and he went on to suggest that one can build an entire political philosophy on this basic idea of the public space. Plato, however, offered a darker view of anonymity. Toward the close of The Republic he tells the story of the Ring of Gyges, which had the power to make its wearer invisible. What we do when wearing the ring, he argued, reveals who we are by freeing us from social pressures. The just man continues to act justly, while the unjust man acts unjustly. Richard Bushman has suggested that the bloggernacle may represent the rise of a kind of Habermasian public space that Mormonism has never had. On occasion, however, it looks much more like Plato's myth.